State Water Board: Loss of institutional knowledge, independence during historic processes

Governor Newsom has announced the appointment of Laurel Firestone, co-founder of the Community Water Center, to the State Water Resources Control Board. Firestone was appointed instead of reappointing the current Water Board Chair, Felicia Marcus. While Firestone is a gifted attorney with deep knowledge of the drinking water crisis in the San Joaquin Valley, her replacement of Marcus on the Board is a major shift in the expertise of State Water Resources Control Board members.

The failure to reappoint Board Chair Felicia Marcus represents a significant loss of institutional knowledge on the Water Board at a critical time in the Board’s development of a once in a generation update to the Bay-Delta Water Quality Control Plan. Marcus presided over the Board during the past six years of development of the update.

Marcus’ experience with the Bay-Delta Water Quality Control Plan dates back to her appointment in 1993 as administrator for EPA Region IX. Marcus was EPA Region IX administrator during the development of the Water Board’s 1995 Bay-Delta Water Quality Control Plan, which is the basis for the current (2006) plan. Marcus had a deep knowledge of the details and implementation of the 1995 and 2006 Water Quality Control Plans, their successes, and their failure to halt the decline of fish populations in the Sacramento San-Joaquin Delta.

Marcus was also co-hearing Officer for the WaterFix Water Right Change Petition Hearing, which is the most significant water rights hearing since the original Central Valley Project and State Water Project permits were granted in 1960 and 1968. Marcus heard hundreds of hours of testimony on the WaterFix project and its potential impacts, and on the decline of pelagic fish populations in the Bay-Delta. Marcus was also considering testimony in that hearing on the historic mandate of the 2009 Delta Reform Act to determine “appropriate Delta flow criteria” to be included in any order approving the WaterFix Change Petition.

According to legislature’s 2009 floor analysis, the Delta Reform Act’s requirement for the Water Board’s to adopt “appropriate Delta flow criteria” “reflect[ed] a landmark concept of the state exercising its public trust authority to ask – FIRST – what the Delta needs, before completing plans for fundamental change to the nature of the Delta.” Contrary to the clear intent of the legislature, the Department of Water Resources has proposed in the Board’s WaterFix hearing that the Board not adopt any “appropriate Delta flow criteria” in the order approving the WaterFix Water Right Change Petition.

The Water Board’s notice for the WaterFix Water Right Change Petition hearing stated that any “appropriate Delta flow criteria” adopted in the hearing would be only “interim” in nature, and that the final flow criteria would be adopted in the pending Bay-Delta Water Quality Control Plan Update. During the entirety of the WaterFix hearing, the Department of Water Resources secretly attempted to negotiate Voluntary Settlement Agreements with senior water rights holders on the Sacramento and San Joaquin River. Governor Brown became involved in negotiating the Voluntary Settlement Agreements in 2018 in a last ditch attempt to resolve major opposition to the WaterFix project by senior water rights holders.

Under Governor Brown’s direction, Karla Nemeth, the Director of the California Department of Water Resources, announced a framework for Voluntary Settlement Agreements at the Water Board’s December 2018 hearing on the Board’s Phase 1 Water Quality Control Plan Update. Nemeth also demanded to take over writing the Board’s Substitute Environmental Document for the WQCP Update to revise it to incorporate the Voluntary Settlement Agreements. This would have essentially usurped the Water Board’s exercise of the adjudicatory and regulatory powers of the state in the field of water resources.

The Board’s Executive Director, Eileen Sobeck, recommended rejection of Nemeth’s demand as contrary to the Board’s regulations, which require the Water Board to be lead agency for the environmental documents for the Water Quality Control Plan Updates. Sobeck recommended that the Water Board instead analyze the Voluntary Settlement Agreements as one of the alternatives in the update. Under Marcus leadership, the Board members approved Sobeck’s recommendation.

Newsom’s cabinet has been continuing negotiations of Voluntary Settlement Agreements with senior water rights holders. The loss of Marcus calls into question whether Newsom’s administration will allow the Water Board to continue its adjudicatory and regulatory processes as an independent agency, or seek to dictate the Board’s decisions as was done under Governor Brown.

Responses

Very well expressed. Board Chair Esquivel and new member Laurel Firestone are excellent choices. However, we will all miss Felicia Marcus’ judgement, experience, patience, humour, and respect the position entails.

I share the concern that our government will continue to be government by I treat groups negotiating solutions in back rooms, with no opportunity for public participation and no record for subsequent judicial review.